Court name
High Court of Tanzania

Nicholas Husk & Another vs Costa Richy Mahalu () [1996] TZHC 9 (23 August 1996);

Law report citations
1996 TLR 363 (TZHC)
Media neutral citation
[1996] TZHC 9

Msumi, J:
This is an appeal against the judgment of the Housing Appeals Tribunal of Tanzania. The C original suit was filed and determined by the Regional Housing Tribunal of Dar es Salaam whereby respondent claimed vacant possession of the suit premises and arrears of rents. Judgment was entered in his favour and this prompted the appellants to appeal to the Housing Appeals Tribunal whose decision the appellants are now D challenging in this court.
The dispute is centred on a tenancy agreement between the appellants as tenants and respondents as landlord. According to the proceedings in the original record respondent E is accusing the appellants for non-payment of rents and disrepair of the suit house. On their part appellants are denying both allegations.
Basically the memorandum of appeal contains two grounds. In the first ground Mr Kalunga, learned counsel for the appellants is contending that the Deputy Chairman of F Housing Appeals Tribunal erred when he held that there was a lease agreement between the appellants and the respondent and that the rent payable was US $1200 per month paid in Germany. The second ground is against the Deputy Chairman's decision that the trial Chairman of Regional Housing Tribunal was right in not seeking the opinion G of the lay-members before giving his judgment. Let me start with the second ground.
It is on record that when the application began to be heard on 21 February 1994 the two lay-members who set with the chairman were Sungura and Mrisho. After partly taking the evidence of the respondent the case was adjourned to 28 February 1994. The H names of the two lay-members who participated on that day are Sungura and Chiunga who presumably replaced Mrisho. Again the case was adjourned to 16 March 1994 for continuation of the evidence of the respondent. On that day Sungura and Mrisho are shown to be the participating members. After the respondent had finished giving his I evidence there had been a number of abortive hearing dates until on

27 July 1994 when the chairman sitting with Chiunga and Mrisho as lay-members A recorded the evidence of two witnesses and thereby closed the case for the plaintiff. Before opening of the case for the defendant, the tribunal dealt with interlocutory proceedings consisting of submissions of the counsels for both parties. Two B interlocutory rulings, both of them in favour of the respondent, were issued. Eventually the case was scheduled for defence on 5 October 1994. Though their advocate, Mr Kalunga was present, none of the appellants appeared. The tribunal decided to proceed with the matter and allowed Mr Kalunga to make his final submission which followed with C reply from Dr Mapunda for the respondent and counter reply from Mr Kalunga. The participating lay-members on that day were Sungura and Chiunga. But without consulting either of them, the chairman proceeded with the preparation of the judgment which he delivered on 17 October 1994. D
Reiterating the argument he raised in the first appeal, Mr Kalunga is arguing that before writing his judgment, the trial chairman ought to have sought the opinion of at least lay-member Sungura who participated from the beginning of the trial. His failure to do so was in breach of s 11(4) of the Rent Restriction Act, 1984. As quite rightly observed by E the Appeal Tribunal, this subsection must be read together with ss (3) of the same section. This is what the two provisions read:
   `11(3) Notwithstanding the provisions of ss (1) if in the course of any proceedings before the tribunal F either or both members of the tribunal who were present at the commencement of the proceedings is or are present, the chairman and the remaining member (if any) may continue and conclude the proceedings notwithstanding such absence.
   (4) At the conclusion of any proceedings before the tribunal the chairman shall seek and record the G opinion of other members present at such conclusion.'
In his judgment the deputy chairman of the Appeal Tribunal observed, among other things, that it was quite irregular for the trial chairman to keep on changing members as H the records indicate. However, on the question whether the trial chairman was right in not seeking the opinion of the members, the deputy chairman was of the following view:
   `... But much as the mix up contravened the provisions of s 11(3) of the said Act, we don't think that I after the learned chairman had decided not to record the opinion of the members he was in breach of

   s 11(4) because the members present should be those who commenced the hearing and thereby A continued to be present during the continuation of the hearing to the end.'
The whole purpose of having lay-members is to embody the notion of public participation B in the adjudication of landlords-tenants disputes. But together with this aim the law took cognizance of the fact that it might not be possible to get the participating members for continuation of the case after it had been adjourned. Subsection (3) is intended to take care of such eventualities. And in order to be able to contribute usefully in the decision of C the case, a lay-member must be present in court when evidence for each party is being adduced. In the present appeal the case for the respondent is basically made of the testimony of the respondent himself. The other two witnesses who testified for the respondent's case have not substantially added anything to it. Indeed the judgments of D both tribunals are based on the evidence of the respondent and the submissions of the counsels. According to the records, lay-member Songoro was present at the commencement of the case and at subsequent sittings when respondent completed his E evidence and when the trial was concluded by submissions of both counsels. Thus unlike other members who sat in this case at different times, Songoro is supposed to be well abreast with the substantive evidence of the whole case. The provisions of s 11(3) Rent Restruction Act, 1984 could not be invoked to justify omission of his opinion. F Where a lay-member has participated at the commencement of the case to its conclusion and he has been present in court in all subsequent sittings when the determining evidence was adduced, his opinion must be sought before the chairman prepares his judgment. Failure to do so will be contravening the mandatory provision of s G 11(4) of the Act and is the circumstances of this case, this defect is fatal to the whole proceedings. The mere fact that a lay-member has missed some of the sittings in the trial does not automatically disqualify him from giving his opinion if, as in the present case, he had been present when substantive and determining evidence was being H adduced. Hence it is on this understanding that the decision of the trial chairman to readmit lay-member Songoro even after he had missed some of the sittings can be legally justified.
In conclusion, without considering whether or not the parties entered into a lease I agreement, I uphold this appeal on the observations made concerning the second ground. The judgment and pro-

ceedings of the Regional Housing Tribunal are nullified and it is hereby ordered that the A suit to start afresh before another chairman with competent jurisdiction.